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[2014] ZALCJHB 145
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Daniels v Standard Bank of South Africa Limited and Another (JS246/2011) [2014] ZALCJHB 145 (24 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO JS 246/2011
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
NEVILLE
WISEMAN DANIELS
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
First
Respondent
EOH
ABANTU (PTY) LTD t/a HIGHVELD
PFS
Second
Respondent
Application
heard: 23 April 2014
Judgment
delivered: 24 April 2014
JUDGMENT
VAN NIEKERK J
Introduction
[1]
In September 2010, the applicant was engaged by the second respondent
(EOH), a temporary employment service, in terms of what
is described
as a ‘memorandum of agreement – contingency employment’.
The agreement required the applicant to
provide services to EOH’s
clients. The applicant’s services were placed at the disposal
of the first respondent (the
bank). On 22 October 2010, EOH advised
the applicant that the bank had notified it that the applicant’s
current contract
would be terminated on 31 December 2010.
[2]
The applicant referred a dispute to the CCMA. In that part of the
referral form 7.11 which requires a referring party to insert
details
of the other party or parties, the applicant wrote “Standard
Bank (SA) / Highveld PFS’. The postal address,
telephone and
fax numbers and the email address reflected on the form are those of
EOH. It is common cause that the referral was
never served on the
bank, at least not as required by Rule 10 of the rules for the
conduct of proceedings in the CCMA. That Rule
requires a referring
party to deliver a completed LRA 7.11 form. Rule 43 defines ‘deliver’
to mean ‘to serve
on other parties and file with the
Commission’. Rule 10 further requires a referring party,
amongst other things, to attach
written proof that the document was
served on the other parties to the dispute.
[3]
A notice of set down of the conciliation meeting was duly issued. The
notice makes no mention of the bank. A conciliation meeting
was
convened at which the bank was not present, it being unaware of the
meeting. On 17 December 2010, the CCMA issued a certificate
reflecting that the dispute between the applicant and “Highveld
PFS’ remained unresolved. On 4 April 2011, the applicant
filed
a statement of case in this court in which he cited the bank as the
first respondent and EOH as the second.
[4]
The bank has raised a point in
limine
, contending that this
court has jurisdiction to entertain an unfair dismissal claim as
between the applicant and the bank. The
bank submits that the court
has no jurisdiction since the applicant referred a dispute to the
CCMA only as against EOH, and that
no dispute between the applicant
and the bank has ever been conciliated. The applicant submits that it
is sufficient that he referred
a dispute to the CCMA timeously in
which the bank was cited, and that the dispute that has been referred
to this court for adjudication
has been the subject of conciliation.
Analysis
[5]
Section 191 of the LRA requires that in a dispute about an unfair
dismissal, the dismissed employee may refer the dispute to
the CCMA,
in writing. Section 191 (3) requires the employee to satisfy the CCMA
that a copy of the referral has been served on
the employer. Section
191 (5) provides that after a certificate has been issued or after
the expiry of 30 days following the referral,
the employee may refer
the dispute to this court. In
National Union of Metalworkers of
South Africa v Driveline Technologies (Pty) Ltd
(2000) 21
ILJ
142 (LAC), the Labour Appeal Court held that the wording of s 191
(5) is such that conciliation is a precondition to the referral
of a
dispute to this court for adjudication. Later decisions by this court
held that it was sufficient that ‘the dispute’
had to be
the subject of conciliation; it was of no consequence that a party
had not been cited in the referral or took no part
in the
conciliation meeting – that party could later be joined to the
proceedings. (See
Selala & another v Rand Water
(2000) 21
ILJ 2102 (LC) and
Mokoena & others v Motor Component Industry
(Pty) Ltd & others
(2005) 26 ILJ 277 (LC)). In
Intervalve
& another v National Union of Metalworkers obo its members
(unreported JA 24 /2012, 26 March 2014), the Labour Appeal Court held
that
Selala
and
Mokoena
were wrongly decided. In that
case, the union had referred a dispute against employer A to
conciliation, and then to this court
for adjudication. The union then
sought to join employers B and C to the proceedings. The court held
that in the absence of any
conciliation consequent on any referral of
a dispute to the CCMA as against B and C, this court had no
jurisdiction to adjudicate
a dispute between the union and B and C.
[6]
To the extent that Mr. Hennig, who appeared for the applicant, sought
to persuade me that it was sufficient that the bank in
the present
instance had been cited in the referral form and that the applicant’s
dispute had been conciliated, it seems
to me that the proper approach
is to determine the purpose of conciliation. Conciliation is more
than a formal step in the process
of dispute resolution – it is
intended to afford the parties to a dispute an opportunity to serious
engage with one another,
with the assistance of a commissioner, and
to seek consensus, in good faith. The emphasis that the LRA places of
prior conciliation
is a recognition that disputes are best resolved
by parties themselves, and that third party intervention is not the
preferred
option. The bank has been deprived of this opportunity,
solely on account of the applicant’s failure to serve the
referral
on it. A purposive interpretation of s 191, one that is
consistent with the decisions by the LAC in both
Driveline
and
Intervalve
and the CCMA’s rules, is that this court has
no jurisdiction in circumstances where a referring party fails to
serve a Form
7.11 on another party, and where the latter is
consequently denied participation in any conciliation meeting
convened subsequent
to the referral. For this reason, in my
view, the bank’s point in
limine
stands to be upheld.
[7]
In so far as the applicant relies on the principle of
res judicata
to oppose these proceedings, it is trite that the principle is
applicable only in respect of final judgments concerning the same
subject matter. The applicant relies on a judgment delivered in this
court by Rocher AJ on 6 June 2012, when he granted an order
condoning
the late referral of the applicant’s statement of claim. For
that purpose, Rocher AJ was required to take into
account, on a
prima
facie
basis, the applicant’s prospects of success in the
main application. He was not called on to make any final judgment, as
this court is, on the issue of jurisdiction as between the applicant
and the bank. In any event, a ruling made by a tribunal lacking
jurisdiction cannot be regarded as
res judicata
.
[8]
Of course, the matter will proceed as between the applicant and EOH.
I did not understand Mr Pio, who appeared on behalf of
EOH, to have
any difficulty with that.
[9]
In so far as costs are concerned, the court has a broad discretion in
terms of s 162 of the Act to make orders for costs according
to the
requirements of the law and fairness. The court ordinarily seeks to
avoid the creation of a perception that its doors are
closed to
individual employees on account of their potential liability for
costs orders that may be granted when they pursue
bona fide
grievances against their employers. In my view, this case falls into
that category and I therefore intend to make no order as to
costs.
I
make the following order:
1. The
first respondent’s point in
limine
is upheld.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Representation:
For
the Applicant: Mr. Martin Hennig, Martin Hennig Attorneys
For
the First respondent: Adv. Nadine Fourie instructed by Bowman
Gilfillan
For
the Second Respondent: Adv. Paul Pio instructed by Van Der Merwe
Attorneys